Wisconsin Bill to Prohibit Discrimination Based on Status of Being Unemployed

On June 6, 2015, the Wisconsin Assembly introduced a bill to prohibit discrimination based on “employment status.” Employment status, under Assembly Bill 261, means the status of being employed or unemployed. AB261, if passed, would prohibit an employer from considering whether you are employed when making a decision on your application for employment. This bill would then encourage the reemployment of those unemployed.

The bill was introduced by by Representatives Barnes, Zamarripa, Subeck, Berceau, Bowen, Brostoff, Genrich, Goyke, Hesselbein, Hintz, Johnson, Jorgensen, Kessler, Mason, Ohnstad, Pope, Riemer, Sargent, Sinicki, Spreitzer, C. Taylor, Young and Zepnick, cosponsored by Senators Hansen, Harris Dodd, Lassa, Ringhand and Wirch. The bill was referred to Committee on State Affairs and Government Operations.

See the text of the bill here:

Wisconsin Legislature: AB261: Bill Text

How An Employer Finds Conviction Records

Many employers are now obtaining and using background reports or investigations in the hiring process. These reports typcially contain information obtained from public records which includes criminal arrest and conviction records. If an employer obtains these reports without a proper disclosure of its intent to use such a report or does not obtain the prior written authorization of the consumer or employee to get the rep0rt, the employer may have violated that person’s rights under the Fair Credit Reporting Act, a Federal law. In Wisconsin, the law protects against arrest and conviction record discrimination in employment.

When Employers Can Use Background Reports for Hiring

Background reports is a broad term. But when an employer obtains information about you relating to your lifestyle, mode of living, credit or other financial history, former employers, whether from a consumer reporting agency, a background checking company or some other third party, the report or investigation as it may be called is likely subject to the requirements of the Federal Fair Credit Reporting Act. To obtain or use such a report, the employer must first disclose its intent to use such a report in writing to you in a document that consists solely of this disclosure, though the document may also include a place for you to authorize the report. Secondly, the employer must get your authorization to obtain and use such a report in writing and before it obtains or uses the report. If the employer does not make a legal disclosure or obtain your prior authorization in writing, it is in violation of your consumer rights under the act. If you are not hired or not promoted, or some other adverse action, you may also have damages that are recoverable under the law.

Federal Employment Credit Check Law Proposed HR 3149 Equal Employment for All

Sixty percent of employers now conduct credit checks on job applicants.  Credit checks in hiring put job seekers in a Catch-22, in which they can’t pay their bills because they lost their jobs, but now they can’t get a job because they can’t pay their bills. Congressmen Steve Cohen (D-TN) and Luis Gutierrez (D-IL) recently introduced HR 3149, the Equal Employment for All Act, to restrict the use of credit checks in employment and put job seekers back to work. The bill will soon be heard in the House Financial Services Committee and needs the support of your elected officials.  You can visit www.creditcatch22.org to learn more about the bill, and you can click on “Contact Your Legislators” to talk to your representatives in government about stopping this discriminatory practice.

Wisconsin Assembly Introduces Companion Bill 854 Regarding Conviction Record Discrimination

On March 16, 2010, the Wisconsin State Assembly, lead by Representatives Parisi, Fields, Pasch, Grigsby, Sinicki, Turner, Roys and Kessler, and cosponsored by Senator Taylor, introduced Assembly Bill 854. Assembly Bill 854 is the Assembly version of Senate Bill 612, which would make it unlawful for an employer to ask about criminal convictions before selecting an applicant for an interview. The bill was sent to the committee on Corrections and the Courts. As I said in my post on SEnate Bill 612, This amendment is similar to the law on disability discrimination in employment, which prohibits inquiries into any disabilities until after an applicant is offered a job. So the disabilities law is a bit more protective than even this proposed amendment to WFEA on conviction record discrimination. Still, the proposed bill would be a significant step towards stopping unlawful discrimination because of a conviction record. It may also help employers hire good employees that they would not otherwise have considered. To view the history of this bill, go to http://www.legis.state.wi.us/2009/data/AB854hst.html. Talk to your representatives in the state legislature about this bill if you support it. They need to know. You can find your state representative by visiting http://www.legis.wisconsin.gov/w3asp/waml/waml.aspx.

Wisconsin Law Proposed to Prohibit Inquiry Into Conviction Record Before Gettting Interview

On March 11, 2010, Senator Taylor, with Representatives Parisi, Fields, Pasch, Gribsby, Sinicki, Turner, Roys and Kessler as co-sponsors, introduced Senate Bill 612 (2009-2010) to create an amendment to the Wisconsin Fair Employment Act (WFEA). The WFEA already prohibits discrimination based on an arrest or conviction record with certain exceptions when the conviction and job are substantially related, but the current version of the Act permits employers to make inquiries of applicants about convictions. Many applicants won’t know why they did not get an interview, and many times it can be due to a conviction record even though the job and the conviction are not substantially related. This bill would prohibit employers from asking applicants about a conviction record until after the employer selects an applicant for an initial interview. The proposal was sent to the Committee on Labor, Elections and Urban Affairs, and is still a long way from becoming law, if it can survive the legislative process. This amendment is similar to the law on disability discrimination in employment, which prohibits inquiries into any disabilities until after an applicant is offered a job. So the disabilities law is a bit more protective than even this proposed amendment to WFEA on conviction record discrimination. Still, the proposed bill would be a significant step towards stopping unlawful discrimination because of a conviction record. It may also help employers hire good employees that they would not otherwise have considered. To view the history of this bill, go to http://www.legis.state.wi.us/2009/data/SB612hst.html. Talk to your representatives in the state legislature about this bill if you support it. They need to know. You can find your state representative by visiting http://www.legis.wisconsin.gov/w3asp/waml/waml.aspx.

Can An Employer Take a Raise Back?

In Wisconsin, the employment relationship is at-will. The employer and employee determine the terms and conditions of employment and, absent a promise of employment for a certain period of time, the relationship and its terms can end or change at anytime. Because of the at-will relationship, an employer may take a raise back without violating the law. What it may not do is to take pay back for work already performed at the rate under the pay raise. It’s a matter of expectations. Where an employee works for an agreed upon wage, even if it was the result of an unexpected pay raise, the employee is entitled to get paid at that rate. Once the work is performed, the employer may not modify the rate of pay for that work already performed. Taking pay back or failing to pay the wage at the rate agreed upon when the work was performed will violate the employee’s contractual rights and state wage laws. Deducting future paychecks for any such retroactive reduction in the wage rate also violates Wisconsin law.

When an Employer Can Require a Medical Certification to Return to Work After FMLA Leave

When an employee takes leave for his or her own serious health condition, and the employer and employee are covered by the Federal Family and Medical Leave Act, an employer may require a certificate from the employee that says the employee can return to work. However, the employer generally may only require a certificate that says the employee is able to work and not require additional certifications unless the employer has a reasonable, objective belief that the employee’s health condition will not permit the employee to peform the essential job requirements or that the employee can’t do so without posing a substantial risk of harm to the safety or welfare of the employee or others. Any such inquiry must be related to the particular job and for a legitimate business necessity. The employer must also generally require this of all employees returning to work after medical leave. And the employer may not require such a certification if the reason for the FMLA leave was to care for another. State law and collective bargaining agreement may modify the requirements and protections.

Employer’s Demand for Doctor’s Excuses Violates Family Medical Leave Act

An employer’s demand of an employee to provide a doctor’s medical excuse for every time the employee was absent due to a serious health condition for which the employee already provided medical certification under the Family Medical Leave Act violated that employee’s rights because it was an act that would discourage one from taking FMLA leave. The U.S. District Court for the Northern District of Illinois came to this decision on January 6, 2010, in the case of Jackson v. Jernberg Industries, Inc. This decision affirms that employees taking FMLA qualifying leave on an intermitant basis (not a consecutive block of time) generally cannot be required to go to the doctor everytime the employee needs to take a day off work because of the limiting effects of the serious health condition just to get a doctor’s excuse so long as the employee has provided medical certification of the need for FMLA leave on an intermitant basis. The court noted that an exception may apply where there is evidence that an employee may be abusing FMLA leave, but that was not an issue in this case.

When Showering At the End of a Shift Is Time “Worked” for Pay Purposes

The Seventh Circuit Court of Appeals recently decided the appeal of employees asking to be paid for time spent washing off at the end of a shift, which would sometimes cause overtime. The Seventh Circuit is the federal appellate court covering cases arising in Wisconsin and other states in the Midwest. In Musch v. Domtar Industries, Inc., 587 F.3d 857 (7th Cir. 2009), the court affirmed the trial court’s decision to dismiss the employees’ claim to pay for the time spent washing at the end of a shift, even though these employees worked in an environment where they may have been exposed to hazardous chemicals, though the plaintiffs apparently did not present evidence that they were actually exposed on a regular basis and the employer did pay for time spent washing after a known exposure. The rationale behind the opinion is that washing at the end of the shift, where employees do not have a known exposure to hazardous chemicals, is for the convenience of the employee and not the employer. Since the wash time is not a principal activity of the employees’ work or related to a principal activity, it is not “work” and therefore the employer need not pay the employees for their time spent washing up.